The world is continuously becoming a smaller and smaller place. It has become a
global community of sorts merely divided by imperceptible borders that are easily
transversed by ever-evolving technological advances in the fields of business,
travel, communication and such, each regulated by its own set of domestic laws and
regulations. Hordes of South Africans immigrate to Australia annually due to, among
others, economic and political uncertainty. These ex-patriots generally leave behind
assets and creditors in South Africa whilst acquiring new ones wherever they choose
to establish themselves. This serves as basis for potential future cross-border
insolvency issues. Furthermore, entities such as companies trading internationally,
and multinational companies with branches and offices in more than one state, have
property and creditors in many different jurisdictions. Should such a company be
liquidated, it would give rise to questions of jurisdiction, the procedures to be
followed, the appointment of a liquidator(s) and the distribution of assets, to name a
few.
The absence of a universal cross-border insolvency law leaves room for much
uncertainty and confusion. What is of importance for purposes of this research is to
clarify all prevailing uncertainties regarding the rights and obligations of the foreign
representative and the foreign creditor in cross-border insolvency matters. The
foreign representative is the person or entity appointed to administer the
reorganisation or liquidation of the insolvent debtor’s assets in a foreign proceeding.
The inconsistency in cross-border insolvency regulations between South Africa and
Australia has the consequence that there is no guarantee that a foreign creditor in
one state will be treated the same as a foreign creditor in terms of the domestic laws
of the other, as the Model Law aims to do. The situation would have been
significantly less complicated had the South African Cross-Border Insolvency Act been in force at present and had Australia been designated as a state to which this
Act would apply. In that case, the treatment of foreign representatives and foreign
creditors would be of a reciprocal nature.
This dissertation attempts, through an investigation of the South African and
Australian domestic insolvency laws, to ascertain the position of the foreign
representative and foreign creditors pre and post incorporation of the Model Law.
Consequently this dissertation compares the legal positions of these parties in terms
of South African and Australian national insolvency legislation. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2014
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/11905 |
| Date | January 2014 |
| Creators | Mouton, Ella |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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